State v. Dowell

• Decision Date: 22 August 2000
• Citation: 25 S.W.3d 594
• Parties: (Mo.App. W.D. 2000) . State of Missouri, Respondent v. Ian C. Dowell, Appellant WD57050 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

25 S.W.3d 594 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent v. Ian C. Dowell, Appellant

WD57050

Missouri Court of Appeals Western District

Handdown Date: 08/22/2000

Appeal From: Circuit Court of Jackson County, Hon. William W. Ely, Judge

Counsel for Appellant: Richard E. McFadin

Counsel for Respondent: Philip M. Koppe

Opinion Summary: Ian C. Dowell appeals the judgment of his conviction for manufacturing a controlled substance for which he was sentenced, after a jury trial, to ten years imprisonment.

AFFIRMED.

Division Three holds:

(1) Since a ruling on a motion in limine is interlocutory only and subject to change during trial, Dowell's argument that the court erred in overruling his motion in limine to exclude certain evidence is not preserved for appellate review. Therefore, the only issue remaining is whether the evidence in question was inadmissible as being improper evidence of uncharged crimes. As long as the evidence is both logically and legally relevant, evidence of uncharged crimes will be allowed to show motive, intent, the absence of mistake, the identity of the person charged with a crime, or a common plan or scheme. Dowell was charged under section 195.211 with knowingly manufacturing methamphetamine. His sole defense was that he was unaware of the laboratory set up in his house, and that it must have been set up by another person while he was absent from the house in police custody. Previous Missouri cases have allowed evidence of a defendant's contemporaneous possession of other drugs or drug paraphernalia to show that he knowingly possessed the controlled substance on the current occasion. Similarly, there is no reason to refuse to allow the State to introduce evidence to show that Dowell knew of the drug manufacturing operation in his house.

(2) Dowell claims that his arrest for drug possession following a traffic stop did not rise to probable cause to assume that drugs would be found at his residence and that the search warrant was based on hearsay provided by an unreliable confidential informant. Because Dowell's Point Relied On was not in compliance with Rule 84.04(e), any review of his claim on this issue is limited to plain error. In examining the affidavit, this Court finds that it contained sufficient other verifiable and reliable information, aside from the challenged information, to support probable cause for the issuance of a warrant.

(3) In challenging the State's refusal to disclose the confidential informant, Dowell bears the burden of proof to show that disclosure of the confidential informant was necessary. He made no record showing that the confidential informant was an active participant in the crime charged other than bare assertions by defense counsel that the informant was willing to clean up Dowell's previous drug operation. In this instance, Dowell did not meet the requisite burden of proof.

(4) Late endorsement of any material witness rests within the discretion of the trial court and will not be disturbed on review absent an abuse of discretion or prejudice. Here, the witness in question was called solely to testify about the process of manufacturing methamphetamine. This testimony was general in nature, and Dowell was not prejudiced by the trial court's failure to grant him a continuance to conduct an investigation into this witness' testimony.

Opinion Author: Edwin H. Smith, Presiding Judge

Opinion Vote: AFFIRMED. Lowenstein and Ellis, JJ., concur.

Opinion:

Ian C. Dowell appeals the judgment of his jury conviction in the Circuit Court of Jackson County for manufacturing a controlled substance, section 195.211,¹ for which he was sentenced to ten years imprisonment in the Missouri Department of Corrections.

The appellant raises four points on appeal. In Point I, he claims that the trial court "erred in denying [his] motion in limine and request for mistrial" with respect to the introduction of evidence concerning his arrest and seizure of methamphetamine, a syringe, and Colt .45 semi-automatic handgun in connection with a traffic stop of the appellant. In Point II, he claims that the trial court erred in overruling his pretrial motion to suppress and admitting evidence concerning the items seized during the execution of the search warrant of his residence because the search and seizure were illegal in that the issuance of the warrant was not supported by probable cause. In Point III, he claims that the trial court erred in overruling his pretrial motion for disclosure of the identity of the State's confidential informant because it violated his constitutional rights to adequately prepare a defense and to confront his accuser. In Point IV, he claims that the trial court erred in allowing the endorsement of an additional witness by the State less than a week before trial without granting him a continuance because in doing so, his trial counsel, in violation of due process, was denied an opportunity to adequately prepare for trial.

We affirm.

Facts

In January of 1997, the Drug Enforcement Unit of the Independence Police Department received information that the appellant was involved in manufacturing methamphetamine at his residence at 249 North Evanston in Independence. On the morning of March 16, 1997, Officer Steve Warren, assigned to the Jackson County Drug Task Force, was conducting surveillance of the appellant's house. A white male, later identified as the appellant, was observed by Officer Warren leaving the residence in a black Ford Bronco. The subject had been seen leaving the residence by Officer Warren on several occasions during the previous two to three weeks.

As the appellant drove south on Evanston, Officer Warren followed and immediately noticed that the appellant's vehicle did not have a front license plate, in violation of state law. He also observed that the vehicle had no working tail or brake lights, also violations, when it stopped at the intersection of Evanston and Scarritt.

At Kentucky and Evanston, Officer Warren activated his lights and siren in an attempt to stop the appellant. However, rather than pull over immediately, the appellant turned on Kentucky and continued driving for a block. As he was in pursuit of the appellant, he saw him "reach[ ] down beside his person, and place[ ] something over on the passenger's side seat." The appellant finally pulled over at Kentucky and Arlington.

After the stop, Officer Warren approached the appellant's vehicle and advised him that he had been stopped for the two traffic violations observed by the officer. The appellant identified himself as "Ian Dowell" and stated that he resided at 249 North Evanston. Officer Warren instructed the appellant to step to the rear of the vehicle and then radioed for backup. He then informed the appellant as to what he had observed concerning his reaching over to the passenger seat and asked if there were any weapons in the vehicle. The appellant answered, "No."

Officer Warren frisked the appellant and found no weapons. He then searched that portion of the Bronco which was within the reach of the appellant as he was sitting in the driver's seat. Pursuant to his search, he found a loaded Colt .45 semi-automatic handgun tucked in the passenger seat. As a result, the appellant was placed under arrest for carrying a concealed weapon, a violation of state law. A further search was then conducted of the appellant, which led to the discovery of a plastic bag containing a white powdery substance and a syringe in his left jeans pocket. The substance was field tested, testing positive for methamphetamine. He subsequently was charged and pled guilty to carrying a concealed weapon and being in possession of a controlled substance.

Later the same day the appellant was arrested as a result of the vehicle stop, the police served a search warrant on the appellant's residence. As a result of the search, methamphetamine; ingredients, supplies, and equipment for its manufacture; marijuana; drug paraphernalia; and weapons were found. On the front porch of the residence, the police found a small listening device that allowed persons inside the house to hear someone entering the residence or talking outside. In addition, they found in the living room a closed-circuit TV monitor that was connected to two cameras that were directed on the rear and front of the house.

Having been charged with manufacturing a controlled substance, the appellant, after a jury trial in the Circuit Court of Jackson County, was found guilty on January 28, 1999. On March 5, 1999, he was sentenced to a term of imprisonment of ten years in the Missouri Department of Corrections.

This appeal follows.

I.

In Point I, the appellant claims that the trial court "erred in denying [his] motion in limine and request for mistrial" with respect to the introduction of evidence concerning the methamphetamine, syringe and Colt .45 semi-automatic handgun that were seized in connection with the traffic stop of the appellant. Specifically, he claims that the trial court erred in admitting this evidence because: (1) it allegedly violated the court's previous ruling sustaining his motion in limine prohibiting its introduction; and (2) it was evidence of uncharged crimes that was not logically and legally relevant in proving the charge against him. We disagree.

A. Motion in Limine and "Request" to Dismiss

The appellant claims that the trial court erred in "denying [his] motion in limine and request for mistrial," allowing the introduction of the evidence in question at trial, because he contends in doing so, the court violated its previous ruling granting his pretrial motion in limine seeking to prohibit its introduction. We disagree.

On the one hand, the appellant in this claim contends that the trial court erred in "denying" his motion in limine, while on the other hand he contends that the trial...